Acceptance of any products and/or services described in Company’s invoices/acknowledgements constitutes agreement to terms and conditions contained herein:
“Customer” means the any and all person(s) acquiring or seeking to acquire products and/or services from Company, including without limitation those who have signed a copy of this agreement.
This Agreement supersedes all previous sales and credit, payment terms and conditions, and finance policies issued by Company, and shall remain in effect until further notice, superseding all prior negotiations or agreements between Company and Customer. Any additional or different terms provided by Customer in subsequent purchase orders or other documents shall not be binding.
Prices and Terms of Payment
1. Prices quoted are firm for no more than 30 days from the date of quotation, subject to any conditions stated in Company’s quotation or in an order submitted by Customer and expressly accepted in writing by Company. Company will not be bound by any price sheet or quote other than a price quote signed by an authorized representative of Company.
2. Prices on orders accepted by Company are firm, to the extent stated in the accepted order, subject to the following (unless otherwise agreed in writing signed by an authorized representative of Company):
a. The purchase order must provide for shipment within six months of the date of the purchase order.
b. Any purchase order providing for shipment more than six months after the date of the purchase order is subject to a price adjustment, at Company’s sole discretion, to reflect the Company’s price in effect at the time of shipment.
3. The price of parts, components, and other items not manufactured by Company is always subject to adjustment by Company to reflect price changes by Company’s suppliers.
4. Orders accepted by Company are subject to credit investigation and approval by Company. Company may, at any time or times, suspend performance of any order or require payment in cash, security or other adequate assurance satisfactory to Company when, in Company’s opinion, the financial condition of Customer or other grounds for insecurity warrant such action. In addition, when shipment has been made in such circumstances, Company may recover shipment from the carrier.
5. Customer’s payment is due and payable as provided in the applicable invoice, or if not otherwise stated in such invoice, then within thirty (30) calendar days after the date of such invoice. A service charge of 1.5% per month will be added to all accounts 30 days past due. It is Customer’s responsibility to notify Company of any extenuating circumstances that may affect your payment and work out a solution (to the extent possible, within Company’s sole discretion). Please know that Company’s interest lies, not in collecting such a service charge, but in receiving timely payments of your invoice.
6. Any tax or other governmental charge now or hereafter levied upon the production, sale, use, or shipment of products ordered or sold will be charged to and paid by the Customer.
7. No order or contract will become an obligation of Company until accepted by Company, and such acceptance is communicated to Customer in writing signed by an authorized representative of Company.
8. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer regardless of which party such taxes are imposed upon (with the exception of any taxes computed with regard to Company’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Company all required receipts and documentation substantiating such withholding. If Company is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Company within fifteen (15) days after Company notifies Customer in writing of such remittance. Customer agrees to provide Company with valid tax exemption certificates in advance of any remittance otherwise required to be made by Company on behalf of or for the account of Customer, where such certificates are applicable.
9. Notwithstanding transfer of title to Customer, for so long as the invoice amount has not been fully paid, the Company retains and the Customer hereby grants to the Company a purchase money security interest (“PMSI”) in all products sold by Company to Customer (“Collateral”), and Customer hereby irrevocably appoints Company as its attorney-in-fact to execute and deliver, in Customer’s name, any such financing statement and other documents as may be necessary under the Uniform Commercial Code or other applicable laws governing the items sold herein to perfect Company’s interest therein.
10. For so long as the invoice amount has not been fully paid, Company may, in Company’s sole unfettered discretion, require Customer to obtain and maintain insurance covering the Collateral to which the above-described PMSI has attached. If and for so long as Company so requires, Customer agrees to obtain and maintain insurance against loss or damage of such Collateral naming Company as an additional insured in an amount sufficient to protect Company’s interest in the Collateral.
Changes and Cancellation
11. In the event of any specification change after receipt of the Customer’s order, Company may adjust the selling price to cover the cost of such changes.
12. Orders accepted by Company may not be canceled by Customer unless both Company and Customer mutually agree to such cancellation. Non- standard products, made on special order, may not be canceled.
13. In the event of a cancellation by Customer, Customer will pay to Company a cancelation charge sufficient to cover all losses and out-of-pocket costs incurred by Company in connection with such order, including without limitation: (i) materials and labor charges; (ii) cancelation charges from vendors; and (iii) a cancelation charge of 20% of the original face amount of the order. The parties agree that such cancellation charge is a reasonable forecast of the damages incurred by Company. The parties further agree that this provision is a bona fide liquidated damages provision and not a penalty or forfeiture provision.
14. Products may not be returned for refund or credit after Customer has agreed to accept them. All sales are final.
15. Saleable products of standard manufacture may not be returned for refund or credit unless Company has agreed in writing to accept them. Inspection by a representative of Company may be required (in Company’s sole unfettered discretion) before return authorization is granted. A minimum restocking/handling charge of 25% may be applied to returned products, to be applied in Company’s sole discretion.
16. All transportation costs and charges for returned products must be paid by Customer.
17. Stock older than one year, non-standard products, products made on special order, or obsolete products are not subject to return.
Transportation, Storage, and Force Majeure
18. Customer shall give Company written prior notice of the desired timing of deliveries. Company shall only be obligated to meet agreed deadlines for deliveries if such deadlines are expressly agreed upon in writing and if all specifications in connection with such deliveries are received from Customer in a timely manner and if Customer complies with all other agreed terms and conditions (including without limitation the payment obligations). In the event Customer fails to do so, the delivery period shall be appropriately extended. Unless otherwise expressly agreed in writing, all costs and risks of shipment and delivery are the responsibility of Customer. Company shall have the right to select the means of transportation. Customer bears the risk of loss or deterioration of the product during the shipment. Any expenses of the carrier selected by Company shall be the responsibility of Customer and will be invoiced separately by Company to Customer. If freight or other transportation costs are increased, Company may add any such increase to the contract price without prior notice thereof to Customer. Company shall not be responsible for any claims or damages resulting from a delay in delivery or failure to perform. Customer shall be responsible for asserting claims for losses or damages in transit directly against the carrier.
19. Unless otherwise stated on Company’s quotation form or agreed by both parties in writing, all prices are F.O.B. Company’s shipping point. Delivery to the initial carrier shall constitute delivery to the Customer. Company’s responsibility ceases and title to the goods passes, subject to Company’s security interest therein, upon delivery in good order to such carrier, and all products are shipped at the Customer’s risk. The Customer agrees to examine all deliveries carefully before signing transportation receipts.
20. If products are visibly damaged, the Customer shall require that written confirmation of the damage be noted on the carrier’s delivery receipt and confirmed by the driver for the carrier. If damage is discovered after unpacking, the carrier shall be notified by Customer at once so that an inspection can be made and the claimed damage substantiated by the carrier.
21. Product on which manufacture or delivery is delayed due to any cause within the Customer’s control may be placed in storage by Company for the Customer’s account and risk, and regular charges therefore and expenses in connection therewith shall be paid by the Customer; but if, in Company’s opinion, it is unable to obtain or continue such storage, the Customer will, on request by Company, provide or arrange for suitable storage facilities and assume all costs and risks in connection therewith. When such delay is due to causes beyond control of either party, the matter of storage and the payment of charges therefore shall be negotiated in good faith.
22. Company shall not be liable for any delay or failure in the delivery or shipment of products or for any damages suffered by reason of such delay or failure if, directly or indirectly, such delay or failure is due to ats of God, bad weather, fire, flood, accidents, riots, war, embargo, labor trouble (including without limitation shortages or stoppages), terrorism, civil disturbance, plant shutdown, equipment failure, inadequate transportation facilities, shortage of material or supplies, regulation by government authority, voluntary or involuntary compliance with any applicable governmental regulation or law or order (including without limitation anything related to a pandemic or COVID-19, or any other virus or public health emergency), pandemic, public health emergency, or any cause or causes beyond Company’s control. In such event:
a. Company reserves the right to allocate available production among its customers in any fair and reasonable manner that it determines is necessary or desirable;
b. Company is not obligated to deliver the product from other than the production or shipping points designated by Company, and Company is not obligated to obtain any raw materials or product from sources other than its usual sources; and
c. If delivery is delayed for 6 months or more beyond the originally scheduled dates due to delays by the Customer in furnishing to Company technical information, approvals, or manufacturing releases, and additional costs are incurred by Company due to any such delays, the Customer shall reimburse Company for such added costs.
Damages, Shortages, Variances, and Weights
23. Customer hereby irrevocably acknowledges and agrees that, except as expressly set forth in any applicable written warranty of Company to Customer, the product is being sold for “as is, where is” condition only, and Customer accepts all risks associated with any and all matters related to or arising from the purchase, transport, payment, use, or any other aspects of the product or this transaction. Customer is solely responsible for inspecting the product and assessing its risks prior to purchasing the product. Unless otherwise agreed in writing signed by both parties hereto, Customer assumes all risks and liability, and Company assumes no risk and no liability, with respect to unloading and discharge of the product (including failure of discharge or unloading implements or material used by Customer, whether or not supplied by Company), storage, handling, sales and use of the product, and the compliance or noncompliance with all federal and local laws and regulations with respect thereto.
24. Customer is responsible for inspecting merchandise on receipt and for filing claims with the carriers for damage or loss. No claims for damages, variance from, or shortages in orders will be considered unless presented within 10 days after receipt of products. Any shipping weights given or estimated are approximate, for the Customer’s convenience only, and not guaranteed by Company.
25. Under no circumstances may Customer withhold payment or charge the Company for freight or warranty related claims.
26. No claim for the expenses incurred for corrective work done on merchandise provide by the Company will be considered or accepted unless specifically agreed to in writing, in advance of the work being done, by an authorized manager of the Company.
27. Customer will rely solely on the warranty provided by the manufacturer. Customer’s sole and exclusive remedy for breach of warranty shall be as provided in the manufacturer’s standard warranty unless otherwise specifically expressed in writing (signed by Company).
28. Customer will be invoiced in the regular manner for all materials and parts even though it may be an in-warranty transaction. Any credits will be issued after factory credits are accepted. Withholding payment of any invoice in anticipation of an in-warranty credit is not consistent with our terms of sale.
29. Company makes no warranty, express or implied of any kind. Company makes no claim of fitness or merchantability or any other warranty, express or implied. No employees or contracts of Company are authorized to make any such warranties on behalf of Company. Company specifically disclaims the warranty of merchantability and the warranty of fitness. Customer hereby acknowledges and agees that the product is being offered for sale in “as is, where is” condition, with no express or implied warranties, except those that are specifically offered by Company to Customer in writing. Company makes no express or implied warranty that the product is non-infringing, is of merchantable quality, or that the product shall be fit for any particular purpose. All warranties of any kind whatsoever are null, void, and without effect upon Customer’s unauthorized modification or alteration of the product, or Customer’s failure to follow manufacturer’s authorized directions or instructions related to the product.
30. For any items or components proposed as a substitute to specified items, it is understood that Company makes no guarantee that the approving authority will accept the products submitted.
Limits of Liability
31. Any action by Customer on this contract must be commenced within six (6) months after the cause of action accrues, and no such action may be maintained which is not commenced within such period. Actions on Company’s or other manufacturer’s warranties, if any, shall be limited as provided therein.
32. Company shall in no event have any liability for any special, direct, indirect, incidental, liquidated, or consequential damages or penalties of any kind, whether on account of lost profits, or otherwise, including without limitation loss of products, loss of time, loss of use, loss of production, loss of savings or revenues, cost of replacement goods, or labor costs or other charges in connection with product use or malfunction, unless specifically agreed to in writing signed by an authorized representative of Company.
33. Customer shall defend, indemnify and hold Company harmless from and against all damages, causes of action (including without limitation attorney’s fees), claims, losses, liabilities, penalties, personal injuries (including without limitation death), environmental damages and tangible property damage caused by Customer’s negligence, strict liability, breach of warranty, breach of this Agreement, fault, action, omissions, or willful conduct arising, without limitation, from the handling, transportation, modification, storage or use of the product.
34. Factors beyond Company’s control and the need to for continuing improvement require the making of changes in products from time to time.
35. Company reserves the right to make changes in products of any kind without notice, and to deliver revised designs or models of products against any order.
36. Company shall have no responsibility whatsoever with respect to changes made by the manufacturer of products sold but not manufactured by Company.
37. Products manufactured and sold by Company may be used by the Customer pursuant to such patent rights as Company may own or enjoy. Company shall not be liable for any use to which any such products may be put as part of any system, mechanism, or process covered by patent rights of others. Customer assumes all risk of patent infringement by reason of any use Customer makes of the product in combination with other material or in the operation of any process.
38. If tests are requested by the Customer to determine the performance of products covered by Company’s quotation, the test procedure to be used must be acceptable to Company. The Customer is responsible to pay for the costs of any such test.
39. Whenever an order includes start-up or service agreements, Company is not obliged to provide any start-up or other service as long as any payment to Company is in default.
Conflicting Terms Offered by Customer (Battle of the Forms)
40. Any terms and conditions of Customer’s purchase order which are different from, in addition to or inconsistent with the terms and conditions expressed herein shall not be deemed accepted by Company and are hereby expressly objected to and will not be binding on Company in any manner whatsoever unless accepted by Company in a writing that specifically refers to each such additional or conflicting term.
41. Company will ship or deliver the products referred to herein only on the express condition that the terms and conditions of sales set forth herein shall be binding on the Customer.
42. The Customer should accept such products and services only if Customer agrees to be bound by these terms and conditions.
43. This Agreement, and any orders or contracts received by Company from Customer, shall be governed by and construed and enforced in accordance with the laws of the state of Texas, including its provisions of the Uniform Commercial Code, but specifically excluding such state’s conflicts of law provisions. Jurisdiction and venue shall be exclusively in Harris County, Texas, and any court within such County, whether state or federal. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement, or any transactions pursuant or related thereto.
Complete Agreement (Integration)
44. The complete agreement between Company and Customer is contained herein and in any specifications or other writings signed by the Company, and no additional or different terms or conditions stated by Customer shall be binding unless agreed to by Company in writing in accordance with Paragraph 29 above.
45. Neither course of dealing, nor usage of trade, shall be relevant to supplement or explain any terms used in this Agreement, and this Agreement may be modified only by a writing signed by both Company and Customer.
46. The failure of Company to insist upon strict performance of any of the terms and conditions stated herein shall not be considered as a continuing waiver of any such terms or conditions or any of Company’s other rights.
47. Time is of the essence in connection with payment obligations under this Agreement.
48. The rule of construction that ambiguities in a document will be construed against the party who drafted it will not be applied in interpreting this Agreement.
49. This Agreement will bind and inure to the benefit of the parties and their respective successors and assigns; however, this Agreement may not be assigned by Customer without Company’s prior written consent. Any assignment without Company’s written consent will be void. This Agreement and the rights and obligations of Customer hereunder shall not be assignable by Customer, either by act of Customer or by operation of law without the prior written consent of Company, and shall not be deemed an asset of Customer in, and at the option of Company shall terminate in the event of, the commencement of any case or proceeding in respect of Customer under any bankruptcy, insolvency or similar law or any assignment for the benefit of creditors. At the option of Company, this Agreement shall terminate in the event of the insolvency of Customer. Any purported assignment of this Agreement without the prior written consent of Company shall be null and void. Company may assign this Agreement at any time without notice.
50. All non-public, confidential or proprietary information of Company, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Company to Customer, whether disclosed orally or in written, electronic or other form of media, and whether or not marked, designated or otherwise identified as “confidential,” is confidential, solely for the use of performing in connection with the purchase and sale of the product, and may not be disclosed or copied unless authorized in advance by Company in writing. Upon Company request, Customer shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Paragraph.
51. Should Company for any reason elect to suspend manufacture of any product which is the subject of this Agreement, or curtail production of sale of the product in consequence of the application of any governmental regulation, law, or order which will, in the reasonable judgment of Company, render the production, marketing or transportation of the product economically, technically, or commercially impracticable, Company may terminate this Agreement upon thirty (30) calendar days’ prior written notice to Customer.
52. If it becomes necessary, at Company’s discretion, to take legal action in order to collect your account, Company shall be entitled to recovery, in addition to any other recovery, its court costs, reasonable attorney’s fees, and all other collection expenses.